No contravention of s 494
78 Section 494(1) of the FW Act provides that an official of an organisation, such as Mr Harkins, must not exercise a State or Territory OHS right unless he or she is a permit holder under s 512 of the FW Act.
79 The relevant State OHS right, said to have been exercised by Mr Harkins on the two days, was identified by the Commissioner as a right conferred by ss 117 and 118 of the WHS Act.
80 It was common ground that Mr Harkins was not, at relevant times, a permit holder under the FW Act. In addition, there was no dispute that Mr Harkins had failed to give any notice of his entry on either day, as required by s 119 of the WHS Act. As he did not hold an entry permit, granted under the FW Act, Mr Harkins would also appear to have contravened s 124(a) of the WHS Act.
81 These failures to comply with notice requirements meant, so it was argued, that entry had not been effected pursuant to s 117 on either day and that, accordingly, no relevant exercise of a right had occurred for the purposes of s 494(1) of the FW Act. This was because s 494(1) was to be construed as applying only to lawful exercises of State OHS rights and that Mr Harkins' failure to comply with notice requirements, prescribed by the WHS Act, rendered any purported exercise of State OHS rights of entry unlawful.
82 Support for this contention was said to be found in decisions of Full Courts of this Court in Australian Building and Construction Commissioner v Powell (2017) 251 FCR 470; [2017] FCAFC 89 and Bragdon v Director of the Fair Work Building Industry Inspectorate (2016) 242 FCR 46; [2016] FCAFC 64 and in an earlier decision, endorsed in Bragdon, of Moore J in John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (New South Wales Branch) (2009) 178 FCR 461; [2009] FCA 645.
83 The question which arose in Powell was whether a union official, who did not hold a permit under the FW Act but who had been invited to come onto a construction site to assist a union health and safety representative working on the site, could exercise a State OHS entry right. The Full Court held that s 494(1) precluded him from doing so. The invitation was provided for in the State legislation (s 58(1)(f) of the Occupational Health and Safety Act 2004 (Vic)) and another provision of that Act, s 70, imposed an obligation on an employer to allow the person assisting the health and safety representative to have access to the relevant worksite. This, it was held, gave the assisting person a right of entry.
84 In passages relied on by the respondents the Full Court in Powell held (at 476-477 [29]-[30]) that:
29 The relevant question is whether Mr Powell (as an official of an organisation as defined in the FW Act) exercised a State or Territory OHS right. Inserting the meaning of the phrase "State or Territory OHS right" from s 494(2), the question is whether Mr Powell exercised a right to enter premises that is conferred by the 2004 Victorian Act.
30 The answering of that question requires the FW Act, and in particular s 494 to be construed, but also requires ss 58(1)(f) and 70 of the 2004 Victorian Act to be construed and characterised to decide whether there is "a right to enter premises" conferred by that Act, in accordance with the meaning of that phrase in the FW Act.
85 Later in its reasons the Court said (at 481-482 [57] and [59]) that:
57 To apply the words of s 494(1) and (2) to the operation of ss 58(1)(f) and 70 of the 2004 Victorian Act in no way undermines the statutory object of s 494 and Pt 3-4 set out in s 480. Indeed it reinforces it. The plain purpose is to regulate by permit the lawful entry of officials of organisations on to workplace sites in respect of rights of entry given by Commonwealth, State or Territory legislation. There is no reason of policy or commonsense why one would distinguish between differently worded conditions that by their operation provided a right to enter premises for occupational health and safety reasons, to require a permit if the official has a reasonable suspicion of a contravention of a State or Territory or Commonwealth law about occupational health and safety, but not to require a permit if the official is asked to assist an HS representative deal with an issue about occupational health and safety, which may or may not have a connection with such a contravention.
…
59 The plain words of s 494(1) and (2) and the construction of ss 58(1)(f) and 70 of the 2004 Victorian Act mean that Mr Powell as an official of an organisation required a permit under the FW Act to enter the premises because he was exercising his right to enter the premises or the HS representative's right to have him enter the premises to assist the HS representative in his task.
86 The respondents directed particular attention to a question posed about whether the official had "exercised a right" conferred by the Victorian OHS legislation (at [29]) and the reference to "lawful entry" (at [57]).
87 Neither passage supports the respondents' argument. The "right" referred to in s 494(1) is a right to enter premises which is conferred by a State OHS law: see s 494(2). That is the right referred to by the Full Court in Powell at [29]. In identifying the purpose of the section ("to regulate by permit the lawful entry of officials") the Full Court (at [57]) is not to be understood as determining that a failure by a State permit holder to give prior notice of his or her entry to premises removes his right of entry under the State OHS law, such that s 494(1) is not engaged. This is so even if a failure to give notice might make the exercise of that right entry "unlawful" in the sense that the State laws regulating its exercise (such as a requirement to give notice) have not been complied with. The right continues to subsist. The issue presently under consideration was not squarely raised in Powell.
88 In Bragdon, two union organisers entered a worksite and directed workers to stop a concrete pour because it was said to be unsafe. Neither official held a permit, granted under the New South Wales equivalent of the WHS Act. Although they held Federal permits there was no evidence that they were seeking entry under s 484. At no point did either organiser assert that he was exercising any rights under the FW Act or the New South Wales WHS Act. Each repeatedly ignored requests to produce their entry permits.
89 They were alleged to have contravened ss 497, 500 and 503 of the FW Act. Section 497 provided that a permit holder "must not exercise a State …OHS right unless the permit holder produces his or her entry permit for inspection when requested to do so by the occupier of the premises …". The Court held that s 497 had not been infringed. This was because the failure or refusal of an official to produce a Federal entry permit when asked operated as a bar to the exercise, by the official, of a State OHS right, but it did not provide a separate or independent foundation for the imposition of a civil penalty under the FW Act (at [40]). The Court also found that s 500 had not been infringed because that section was only engaged where a person, as a matter of fact, exercises or seeks to exercise a State OHS power. The two officials did not have any right to exercise such a power and they did not assert, mistakenly or otherwise, that they had such a right.
90 In the course of the Court's reasons it referred to John Holland with approval. In a passage, on which the respondents relied, the Court in Bragdon said (at 55-56 [48]-[51]) that:
48 In John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (NSW Branch) (2009) 178 FCR 461 (John Holland), Moore J discussed Pine v Doyle and distinguished it. Moore J found that two union organisers did not have relevant entry permits under the Occupational Health and Safety Act 2000 (NSW). In those circumstances, his Honour found (at [50]):
50 In my opinion, there are material differences between the provisions Merkel J considered in Pine and those that arise in the present case. Section 756 identifies a class of union official upon whom Div 5 operates with the effect of the Division being to impose conditions on the exercise of the right of entry and to prohibit certain conduct when exercising it. That class of union official is constituted by those who hold a permit under Pt 15 and have a right to enter under an OHS law. The existence of the right to enter under an OHS law confers a legal status on the permit holder which engages various provisions in Div 5. It is unlikely that the provisions which limit the way in which the right of entry might be exercised were intended to operate in relation to a union official who did not have that status because they did not have (though they may have mistakenly believed they did) a right to enter under an OHS law. In particular, s 758 is not intended to operate on a permit holder who does not have a right of entry under an OHS law. The section contemplates that the person on whom it operates might enter or might remain on premises "under an OHS law" but shall not enter or shall not remain if a reasonable request is made by the occupier. If the request is not complied with then the permit holder contravenes the section. In my opinion, there was no contravention of s 758 by either respondent.
49 His Honour went on (relevantly to matters to be discussed shortly):
51 This leads to a consideration of whether there was contravention of s 767 which provides:
(1) A permit holder exercising, or seeking to exercise, rights:
(a) under section 747, 748 or 760; or
(b) under an OHS law in accordance with section 756 or 757;
must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.
(2) Subsection (1) is a civil remedy provision.
Note: See Division 8 for enforcement.
(3) …:
52 The applicants contend that the second and third respondents acted in an improper manner by entering the premises when permission to enter was denied and remaining on the premises when requested to leave. It can be seen that a permit holder can contravene this section by intentionally hindering or obstructing a person or acting in an improper manner in exercising or seeking to exercise rights under an OHS law in accordance with, relevantly, s 756. But as just discussed, s 756 operates on a person who has a right under an OHS law and, in that sense, identifies a person with a particular status on whom Div 5 operates. In my opinion it necessarily follows that the prohibition on, amongst other things, acting in an improper manner, concerns only a person with that status.
53 I accept that this construction of ss 756, 758 and 767 results in the various prohibitions or limitations not providing the complete protection of the type discussed by Merkel J in Pine (at [16] set out above). However in that matter the critical expression was "[a] a person exercising powers under [various provisions]". His Honour was able to conclude that a person can be exercising those powers even if they were mistaken in believing that the power had been lawfully conferred by those other provisions. In the present case the language and structure of the various provisions are different. A person is given a status by virtue of having a right conferred by state law. It is only then that various consequential provisions are engaged.
54 In my opinion the second and third respondents could not have contravened and did not contravene ss 758 and 767 because neither had a right to enter premises under an OHS law.
50 A similar approach may be seen in the analysis in different proceedings in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88 (per Spender J at [12], per Dowsett J at [41]).
51 In the present case the primary judge expressly preferred the approach taken by Merkel J in Pine v Doyle, to that of Moore J in John Holland. In our respectful view, that was an error.
91 The respondents contended that Bragdon and John Holland supported the proposition that s 494(1) of the FW Act only prevented officials who were not Federal permit holders from exercising State or Territory OHS entry rights if those rights were otherwise being exercised in a lawful way, that is, in compliance with all of the relevant requirements under the FW Act and State or Territory legislation.
92 It is first to be observed that the decisions in Bragdon and John Holland turned on the status (or lack of it) of the union officials involved. In neither case, unlike the present, did the officials hold rights of entry under State OHS legislation. The reason that the officials in those cases were found not to have a right to enter premises under State OHS law was because they did not hold relevant permits (in the case of Bragdon) or an equivalent authorisation (in the case of John Holland) under those laws.
93 As already noted, the "right" referred to in s 494(1) is a right to enter premises conferred by State OHS law. Relevantly, s 117(1) confers a right of entry, for the prescribed purposes, on a person, such as Mr Harkins, who holds the status of a WHS entry permit holder. The exercise of the right is qualified by a number of other provisions of the WHS Act. Section 117(2), for example, imposes the precondition that the permit holder must reasonably suspect that a contravention of the legislation is occurring or has occurred at a particular site. Notice requirements are also imposed on permit holders under the WHS Act (s 119). Other requirements relate to the need for permit holders to carry with them their WHS entry permits (s 125), the times during which the right may be exercised (s 126) and the parts of the construction site which may be examined (s 127).
94 There is no textual justification in either s 494 of the FW Act or s 117 of the WHS Act for a conclusion that a failure to comply with such conditions and requirements extinguishes the right of entry conferred on WHS entry permit holders. The failures may have consequences under the WHS Act but do not impinge on the right of entry conferred on WHS entry permit holders.
95 In Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner (2017) 251 FCR 528; [2017] FCAFC 77, a case in which the union officials concerned had asserted an entitlement to enter a construction site for the purpose identified in s 484 of the FW Act, Flick J (with whom Besanko and North JJ agreed) held (at 535 [31]) that the decision in Bragdon did "not support a conclusion that a 'permit holder' who fails to give a 'notice for the entry' is not 'exercising, or seeking to exercise' the right conferred by s 484 or a conclusion that entry in such circumstances is not 'in accordance with' Pt 3-4": cf Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) [2018] FCAFC 88 at [73]-[77], [84] and [97] (Tracey J, with whom Allsop CJ agreed at [2] and White J agreed at [180]-[181]).
96 There is, in my opinion, no justification for reading the word "lawful" into s 494(1) such that it is only engaged if a State permit holder has complied with every requirement regulating the exercise of his or her right under the State legislation. This subsection may be contravened by an official who holds a permit under State OHS legislation and who exercises a right of entry conferred by that legislation even if the official fails to comply with conditions or requirements which place constraints on the exercise of the right.